Legal Case Summary

Good morning. May I please support my name is Chris for Brown on behalf of the estate of Wayne Jones on this appeal from the grant of summary judgment in his suit, its suit against the city of Martin's birth and several individual police officers. Three years ago, on March 13th, Wayne Jones was walking down the street allegedly in violation of the municipal code. And the result was he was fatally shot 22 times by members of the Martin's birth, police department. When the story begins and ends with those two statements it initially raises concerns. All too often, the initial response tends to be what did he do? On behalf of Robert Jones and Bruce Jones, the administrators of the state and brothers of Mr. Jones, they want to change that narrative. They want that question to be, what is the deficiency and the training of officers that's allowing this to occur? So they filed student June of that year for 1983 and some other claims against the city and the individual officers. Summary Judgement was granted. And we feel that it's fairly clear that there's a recent Supreme Court decision, Tolon versus Cotton, 134 Supreme Court 1861, 2014. And in that case, the Supreme Court granted search your are in this year's decision. And the summary does in case because the lower court had quotes failed to credit evidence that contradicted some of its key factual conclusions and improperly weighed the evidence and resolved to speed up issues in favor of the moving party. Normally in these cases, we are stuck with the testimony of witnesses, but with the advent of technology, we have dash cams. And those dash cams, so a large portion of the event that occurred when Mr. Jones was fatally shot. Unfortunately, the question and missions were served on December 23rd. I felt that Council, Mr. Lambert, made a very reasonable argument that I didn't receive them until two days later than the date I would be deemed to have received them under the rules. And as that they be allowed, he raised it in his motion. I think in contrary to the position of the obteles, he did raise some of the factors that needed to be considered. And the court, the magistrate just deemed through the press for admissions admitted. That's nothing new. It happens when responses are provided timely. But nonetheless, when those admissions, so you can see them in time. I felt that Lambert did. I don't think I felt that if the rules say 30 days from upon receipt, if he received them on January 2nd and calculated the 30 days, I think that should have stopped. I understand that there can be issues and we're gonna add three days for US mail. But I think that's to cover up when someone says, well, I didn't get them or I have no evidence that they were received. But here he was presenting evidence of when they weren't in fact received. And I will concede, I was surprised that that alone didn't carry the day for him on allowing him to have his admissions accepted at a time. But he didn't file a motion requesting that the magistrate judge allow the estate to withdraw or amend. He did not. And the case law from this court and other district courts is clear that a filing of responses can be deemed a motion. Requesting or just opposing the motion to deemed them admitted could be considered a motion to accept them at a time. I'm confident that that part of the case law just don't feel as clear. And when he provides those responses and he opposes their second motion to deemed the request for admissions admitted, at that point the court has a burden. The court has a burden to deem that motion to withdraw the admissions deemed admitted. And determine whether or not it would allow the case to go forward on the merits if you grant this request. And what if any prejudice there is to the requesting party, the party that requested the admissions? This court has reviewed, there was a case out of the Eastern District of Virginia, Judge Kacharis, Med Path

. In that case the court went through the eighth Circuit opinion and gutting, the second Circuit opinion and movement, the ninth Circuit opinion in French. And it had to do with the presentation of some financial records. And Judge Kacharis held the burden given the scope of the case would have been fairly great on the requesting party to prove these facts were the other party allowed to withdraw the admissions. And this court held the prejudice while it was not great, it was sufficient to support the district court's rejection of the untimely responses. And I respectfully submit, we don't even have a prejudice that's not that great in this case. We're talking about two days late. You don't have any prejudice in this case, do you? To the appellees that had the withdrawal been allowed. No prejudice, nine months left in discovery. They were following what day January 27th, 29th? They were following two days after the first motion to do the admitted was filed. And it was certainly before Christmas. They were served two days before Christmas. And in this case, there's no analysis as to whether or not there was prejudice or any considerations which is reversed to be. Right, correct. That is correct, Judge Kacharis. To fail to consider the 36B factors. And just so I understand why would that be in order to get to that, there would have to be some notice to the magistrate judge. You would have, wouldn't you have some obligation to put that in issue? So my question is, you're saying that a discussion before the magistrate judge was enough to put that in it can play. There is proof. Even though the no motion was filed. The opposition to the second motion to dean, the request for admission to admitted was sufficient to establish that the state was moving to withdraw the admission's deemed. No matter fact, the state specifically said it would be contrary to the purpose of the statute. Did it not? It would. And contrary to the purpose of the rules of the statute. And that would have to show me, you know, just counting days would. It absolutely would, Your Honor. The ultimate intent of the federal rules is to do justice. The question of admission, the purpose of them is to alleviate a party of the burden of proving facts that are really uncontested so that they don't have to come in with custodians and et cetera. When you have facts that are clearly the heart of the case, it cannot be argued that these facts were not disputed. And Mr. Jones had a gun that he tried to stab a police officer that he refused to drop. I mean, sorry, the knife. The refuse to drop the knife. No matter the fact, the question is, the mission is a kind of interesting because this state is deceiving to him. He's dead. So they would be in the best position and say whether or not he had a knife, wouldn't it? In terms of missions. Yes, they would. And it's just interesting. The rest of the party, I mean, since what you'd be an asked to admit, you'd be the defendant would be the one to know best because he's obviously Mr

. Jones is dead. Well, the City of Martin's work and the officers, they're not going to contest the fact that no knife was ever recovered. Yes, I found it interesting. They never found any knife on this man. And there was testimony that knife fell out of one of the officers' pockets. Well, I looked at the video several times and what was said, I think just before they shot him, was that, drop the knife. Drop the knife. It's in your hand. I mean, then I heard other conversations actually when they saw it, but it was in his hand. But anyway, reading the memory and opinion, 12-page, 12-to-13 of Judge Gros' memory and opinion, she goes through, well, let's look at the facts of this case. It really states three things, all based on their request for admissions. And looking at that video, I just found it incredibly difficult to understand how one can alleged that he was resisting a threat to the lives of the officers and refusing to put down a knife when he'd been taste three times and he appeared to be faced down on the pavement. I was unclear how... But then the video showed they were like, five officers on top of it. That is correct. Yes. But then I could hear the sounds of him being choked. He was put in the place in the chokehold, tased a third time. And we'll get to whether or not there was excessive force and a reasonable behavior of the officers. But at this point, I think it's fairly clear that we can say there was no reasonable reliance by the appellees on these admissions. It was a gotcha game, respectfully. They couldn't reasonably rely on the fact that the estate admitted. He didn't have... He had a knife. He stabbed an officer and he refused to put down a knife and follow the names. There was no... The estate... The City of Martin's Bird and the officers involved cannot with good faith say. We've reasonably relied upon those. And they affected their

... The course of litigation in any way following that. There was none much left in discovery. They hadn't foregone any discovery. They want to say they were lying on it for the summary judgment motion, which some of the case law discusses, but that alone won't be enough. And it was only... There were only two days late. In the cases that have discussed... When there was... Prejudice. They all involved... The answer's coming in a month, two months late, discovery being closed, despositive motions deadlines having passed, etc. And we don't have any of those factors here in this case. We don't. Looking also at precision franchising, which cites the event's opinion. The first factor that it could... It would help promote the presentation of the merits. And of course, the fact that this prong is met when the deemed admissions effectively resolve the case, unless upholding the admissions would eliminate any need for a presentation on the merits, which clearly had that here. Could I just... Yes, Your Honor? There are actually two threshold issues here to overcome before getting to the merits. One is the failure to move to have the admissions withdrawn. But the other is also that the estate failed to challenge the magistrate judge's order in the district court. That is correct. And that's.

.. It's pretty clear under our precedent that that is a condition precedent to appeal, is it not? What my understanding is, the reading of 72A, and when you have a despositive issue, that the district court, when presented with those facts in ruling on summary judgment, had an obligation to make his own determination, and whether or not it was appropriate to accept those facts as deemed admitted. I'm sorry, I'm talking about... So I'm talking about once we have the magistrate judge's order. Yes. It becomes a recommendation, and I believe there is two weeks to notice an objection to the magistrate judges finding. I understand. So getting beyond the admissions, I'm talking about the magistrate judge's order. The well-justice is talking, in this case, the magistrate judge... Thank you for the elevation. You just called the judge. I did want to make sure that was clear. The court... The magistrate judge did not issue a report in recommendation, which is what should have happened because this was a despositive issue. But they issued an order. An order. And the order... The rules do allow for an objection to the order. But if it's a despositive issue, the district court still has an obligation to review the 36B factors. Okay, isn't that not the case when the individual is uncounts-sold? Is that true or a counseled appeal as well? Well, you know, looking at... It's an unplugged opinion. And looking at the... Is it Bailey versus Christian Broadcasting Network? This court held... Although the district court was required to correct the magistrate judge's ruling, if it found the ruling clearly or wrongness or contrary to the law, the court accepted them summarily and without further explanation

. Okay, that's... My question, though, is with respect to the action that was taken after the magistrate judge completed its consent. It's Bailey was for say, if that's what your honor is getting at. Okay, that's... Yeah. He was for say. But the opinion doesn't suggest a reliance upon that. When it discusses the non-dispositive nature of the deemed admissions that come before the district court and ruling on summary judgment. So when Judge Grows review on summary judgment saw that there was a question of Mr. Dean submitted, she had an independent obligation to review that to determine whether or not that was in the interest of justice and the presentation of the magistrate's case, and whether there was any prejudice to the city and the officers had they been allowed. But haven't we held that failure to object to a magistrate judge's decision? Will you use the right to challenge it? You'll appeal fairly regularly. It does, particularly when you're moving under 72, the non-dispositive issues. With respect to a dispositive issue, given that the magistrate judges are creatures of statute, they get their authority from statute, they don't have the authority to make a termination that would be dispositive. And for the district court to accept the magistrate, the magistrate judge's determination that was dispositive of the case, was in error. The way you were done to extend the magistrate's power, that's correct, right? But 72 be said, even on dispositive notions, within 14 days after being served, a party may file in serve specific objections. There's still a mechanism for objections, but there's a distinction between waiver and forfeiture. And in this case, given the magistrate's authority, limited authority, and I'd like to reserve the rest of my time for review by. Thank you, Mr. Brown. Thank you. Mr. Cook. Say, right? Thank you. May I please the court? My name is Philip Sarrin, and I represent the Appleese in this case, both the city of Martin'sburg and the police officers. I wanted to, perhaps quickly, address our position on our quest to admit. We believe that the issue has not been reserved for review. Rule 72 is quite clear in that respect that failure to object to the magistrate's order does not allow further review. And the reason for that, that the Supreme Court has explained why, and actually explained it before, Rule 72 is amended to have that obstruction in there. What the Supreme Court stated in Thomas Vs. Arn is that the district court supervises the magistrates, and then the appellate court reviewed the district court's decisions. So that if the litigants have an objection to a magistrate's ruling, is incumbent upon the litigant to then raise that objection with the district court so that that issue can be then preserved as far as the district court, the district judges ruling for purposes of the appeal. And the contention by the appellant in this case that is incumbent on the district court to go back and see whether or not the magistrate correctly ruled is inconsistent with both Rule 72 as well as the case law construing Rule 72. To the extent that the appellant contends that the request to admit being deemed admit was a positive issue that should have been considered by the district court and not the magistrate judge. We disagree with that, first of all

. We believe that the positive issues are such things as motions to dismiss motions for summary judgment as opposed to discover rulings that may be formed ultimately part of a positive issue. But to the extent that the court or to extent that the appellant argues that the magistrate judge ruled on a despositive issue, that too was not preserved in the district court because we believe it would have been appellant's obligation to advise the magistrate judge that this was an advice the district judge, I'm sorry. The magistrate judge had ruled on a despositive issue and asked the district judge to rule on it instead. And in your authority for the proposition, well, counsel for the estate argues that it makes a difference that the distinction between despositive and non-dispositive. And the motion controls and can you sort of encapsulate your response to that in your authority for it. And also the case that was that counsel cited, which I think involved a pro-say appellant. Well, what I would say on is that the, I think I rely on the case law in our response break in terms of types of orders that are non-dispositive and types of motions that are despositive. And I think that something along the lines of whether or not a response was filed timely would fall in the nature of the non-dispositive based on the fact that that does not dispose of the case. Now, anytime that there's a ruling on a discovery issue, it very well may become part of a summer-judge motion. The fact that it may become an important part of it does not in and of itself mean that the ruling that the response was untimely is therefore converted into a despositive ruling. Are you saying this court doesn't have the power to review that in plain air on the plain air? We can review a plain air when you don't even raise the issue of the district court level. And you raise it here for the first time in the court here. You say we don't have the power to review this on the plain air. Our position, you're on, would be that the district court was not given an opportunity to rule on that. No, no, you're not asking my question. Are you saying we don't have the power to review this issue on the plain air? I understand the court's question. What if you answered that? Well, my response to that is that the district court did not commit error, perhaps the magistrate or did. That's the distinction that I'm wrong. I know that the federal position, understanding. Okay. The question is, can we review it for plain air? That's not, I know that I don't want you to concede anything else to whether it was right or wrong. The question is, Paul, are you saying we don't have the power to review that on the plain air? To review the magistrates ruling. To review the fact that allowed emissions when they never considered any of the purposes be, considerations of prejudice and impact and all of that, nothing other than just counting days. Can we review that on the plain air? Even if it was not properly raised. Are positions in the circumstances of this case, is that no? We don't have the possible. That's because of the circumstances of this case, not in other circumstances. Is the question power or, and this is my confusion or jurisdiction? Do you understand what I'm saying? I do. I do. And I think that's probably a better articulation, perhaps a closer articulation of our position, that this court would be then reviewing the magistrates ruling as opposed to an era that was allegedly committed by the district court, because it was not put before the district court for review. Mr. Case, it would be this positive. Clear that. Let me, not if I could look at the arguments, the arguments you made for the magistrate judge, you were talking about, that could be raised in terms of summary judgment in terms of votes, questions. It is despositive. Let me address a couple of issues on that, if I could, because I'd like to address, I could get to the merits, because by ultimately, I believe that there's no disputed facts in this case in terms of whether or not the officers reasonably believed that Mr. Jones had a knife and would not put it down. And the reason I said that, your honor, is because even taking out the admissions, if we set them aside, the video tape was very clear that the officers believed that he had one officer, I think it was officer Stobby, he figured out, said he's got a knife. Four of the officers said they saw the knife

. They jumped back and said, get back, get back, he's got a knife, drop the knife, drop the knife. So I think it's undisputed, at least that the officers believed that he had a knife, and then he was not putting it down. Conferred to what the appellant represented, there is, in fact, evidence in the record of a knife. This was perhaps not brought out in some of the proceedings as much as it might have been because of the admission. But I would point the court to, in the report by the City of Martin's Byrne, indicates that a knife was found in Suspect's hand by the West Virginia State Police. Also, that officer Stobb had a chest wound and his uniformed invest were cut, and that's a document of 125 on the District Court, 125-8. Who's the author of that report? That was by the City of Martin's Byrne. The City of Martin's Byrne's Byrne's report on the West Virginia State Police investigation. The State Police, they weren't there yet? The State Police investigated it afterwards. What difference would make you listen? What I understand is, you have five officers that were literally one inch from him, or less, on top of him. Right? Yes. On top of him, laying on top of him. Most of the shots were in his butt-ups, back, and that's a... He's on ground. Five people are off. He has a knife in his hand. They shoot him. What did the knife go to? The knife was found by the West Virginia State Police that investigated and sitting afterwards. What about the police officers? They were right there to five people who shot him. The knife was in his hand, your honor. Did the West Virginia State Police... ...and correct me if I'm wrong? I have a question about this. It was admitted into evidence as I understand it, but it wasn't produced and the district... Was it produced? It was not put into the record in the district court. Perhaps because that fact was deemed admitted. However, there also is a reference to it in the expert report by the plaintiff's expert, referring to the knife having been found by the West Virginia State Police. And that's the joint appendix page 485. So you're saying that.

.. ...reducing the weapons... ...relight on the admissions as well as the testimony of the officers. The importance of the evidence, your honor, is that the question is whether or not the officers reasonably believed that he had a knife... ...and was not putting it down when he was commanded to do so. The law in this circuit as well as establish that if an officer is... ...if a suspect has a weapon and refuses to put it down when commanded to do so, that deadly forces authorize. Here, the officers clearly reasonably believed that he had a knife. There's testimony that he was getting up. That is, on the street, there's no evidence that he was not... ...and did not have a knife or did not... was not moving. And the

... We made life a lot. Would it have made sense to produce it just to take the question out of play? Well, I guess that's 2020 hindsight. And it would have been additional cumulative evidence. It would not have been cumulative because the issue is the physical evidence. What you're saying is that basically the argument is this. It doesn't matter whether there was a knife or not, as long as they reasonably thought it was a knife. That's what you're saying. But those are different types of cases. Those are cases where the person is in some distance and they wheeled around. And what it turns out to be a cigarette lighter. Or a stick of gum. And then they say, well, we thought it was... This is a different case. They are on top of him. Literally on top of him, back away. And then the credibility comes here. They say it that I heard it too. Drop tonight, drop tonight. But there is no knife. So they raised the question whether or not the fact there ever was a knife or whether they even thought he had a knife. That's credibility. That's a factual question. The question is not whether in fact had a knife, but whether or not they reasonably believed he had a knife. And one of the officers... I'm sorry. I understand it. But under these circumstances, you would have to be bereft of common sense to say that five people are on top of you. And they're right there with you. And they say it in your hand. I can't imagine why he was being choked with the other four we're doing. He was being choked. That's a disputed

. I think it was about one of the officers choked. You can hear this sound. He's gagging for breath. He's on the ground. What another four are doing? Waiting season is going to win the battle? No, they're on top of him. And then you say he has a knife. But no knife is produced. That raises a serious credibility question whether or not it was correct when they were saying he has a knife. That's the... That's what Dr. Was asking. Wouldn't it been better? Yes, it wouldn't be. If that was the fact of it, was there was a knife? It seems like there's a knife. Because I heard them say, well, there's shells all around. Right? You can hear them talking about the shells, the cases. And they're right there. But you don't just say they don't bang it up as ever. And then you say, that would be the most important thing I would be concerned with. If I was a police officer in shock, somebody in 22 times, I was like, wait a minute. He had a knife and there was like, don't touch it. Draw a certain... I'm saying, the officers are tied in a day in court on the marines. But that raises some credibility question, doesn't it? Officer was stabbed. Judge Gregory. It was stabbed. Judge, stop. Did you introduce to shirt? Did you introduce to shirt? I'm sorry. It was the shirt introduced? Yes or no? There's evidence. Was that an evidence? Was it put in evidence? I guess if you stand through your shirt, it'd be torn. Was that an evidence? There's evidence that his shirt was torn. What was torn? I guess I'm having a... Maybe I speak another language. I'm sorry. Did you put the shirt in to... I was not the... You were the only person who was... I do not have... I have not seen that. That's what I do not believe so. But wouldn't that be important if you had a torn shirt? That was... That was corroborate that you were stabbed? I believe that that would corroborate it. But I don't see any evidence in this case. I have not seen any evidence in this case that he did not have a knife that the officer was not stabbed. That's what I'm saying. There are photos in the record. Yes, there are photos in the record. The cut. Yes, thank you. There are photos in the cut. Yes. To the officer's stop. Yes. Did it blood on those? Did it any DNA? I don't believe it was a deep cut, Your Honor. But a knife is a deadly weapon. A knife can inflict death or rape bodily harm. No argument. And the officers are not required to put their lives in danger because... They're in a situation that is rapidly

. I'm sorry. Did you put the shirt in to... I was not the... You were the only person who was... I do not have... I have not seen that. That's what I do not believe so. But wouldn't that be important if you had a torn shirt? That was... That was corroborate that you were stabbed? I believe that that would corroborate it. But I don't see any evidence in this case. I have not seen any evidence in this case that he did not have a knife that the officer was not stabbed. That's what I'm saying. There are photos in the record. Yes, there are photos in the record. The cut. Yes, thank you. There are photos in the cut. Yes. To the officer's stop. Yes. Did it blood on those? Did it any DNA? I don't believe it was a deep cut, Your Honor. But a knife is a deadly weapon. A knife can inflict death or rape bodily harm. No argument. And the officers are not required to put their lives in danger because... They're in a situation that is rapidly... I agree with you 100%. I'm not talking about it at all. I'm talking about where is the knife? Where five officers are right around it. But just... Where is... Why was it not put into evidence? The evidence is... There is that evidence, Your Honor. And if this court were to find that the admissions must be set aside, then I think that in fairness, the defense should be able to present the evidence without the admissions for the district report to decide that issue or not. I didn't just clarify, at least as I understood from the record and the investigation report, noted that it was admitted into evidence. It simply wasn't produced in the district court. Am I wrong? Is that not correct? I'm not. I'm sorry. I'm sorry. I don't have to answer that question. It's another thing. Get back to admissions. I'm pretty old. When I practice law, I've been pretty rare to somebody. Serve you two days before Christmas in the holidays. And then in a case this is important and you know in terms of our nation. These cases of... It's quite the serious questions being raised about them. And two days late over the holiday and you didn't admit it. I mean when I practice law, I mean that would be just unthinkable. I mean, in matter of fact, you file your motion the day they would do. I mean, I understand. How is that? I don't understand. I just don't understand

... I agree with you 100%. I'm not talking about it at all. I'm talking about where is the knife? Where five officers are right around it. But just... Where is... Why was it not put into evidence? The evidence is... There is that evidence, Your Honor. And if this court were to find that the admissions must be set aside, then I think that in fairness, the defense should be able to present the evidence without the admissions for the district report to decide that issue or not. I didn't just clarify, at least as I understood from the record and the investigation report, noted that it was admitted into evidence. It simply wasn't produced in the district court. Am I wrong? Is that not correct? I'm not. I'm sorry. I'm sorry. I don't have to answer that question. It's another thing. Get back to admissions. I'm pretty old. When I practice law, I've been pretty rare to somebody. Serve you two days before Christmas in the holidays. And then in a case this is important and you know in terms of our nation. These cases of... It's quite the serious questions being raised about them. And two days late over the holiday and you didn't admit it. I mean when I practice law, I mean that would be just unthinkable. I mean, in matter of fact, you file your motion the day they would do. I mean, I understand. How is that? I don't understand. I just don't understand. I'm a dinosaur. People would say, as the holidays are, get to it. Okay, two days. But I guess now it's different. Before they even do, you rush down to the court. But I'm not saying, but is that... Maybe that's the way practices are. You're on, I was not involved in case that point. I cannot speak to that. But I can say is that obviously the court understands our position about the preservation. But apart from that, what I'm saying is that even without the admission... You look at the videotape and with due respect, Your Honor, I believe it. What you see is officers trying to subdue someone who's resisting arrest has a weapon. I believe the case law is clear that when an officer is confronted with a suspect who has a weapon and refusing to put it down, then deadly forces authorize. And what we cannot do, and I think what the cases are very clear, that the court should not do, is sit back and second guess that they could have done this, could have done that. The question is, from the reason most... From the perspective of the officer on the scene at the time the force was used, you have someone who the officer is saying he's got a knife. Four officers say we have a knife. He's not putting it down. As far as the gunshots are concerned, there were five shots to the various, just to the leftist of midline on the chest on the... So he was... The corroborator of the officers was saying that he was on the side facing them, waving the knife. I think under those situations that the officers are allowed to make judgments that may be mistaken, but that does not violate the Fourth Amendment. And certainly we have not found any case law that says that where you reasonably believe a suspect is armed and is not putting it down, then deadly forces not authorize, unless there's a point in time where the threat has clearly passed. And if deadly forces are still used after the threat has clearly passed, then that could be a violation of the Fourth Amendment. You don't have that here. Well, he didn't officer North some question about whether or not there was a threat at the time that his testimony.

. I'm a dinosaur. People would say, as the holidays are, get to it. Okay, two days. But I guess now it's different. Before they even do, you rush down to the court. But I'm not saying, but is that... Maybe that's the way practices are. You're on, I was not involved in case that point. I cannot speak to that. But I can say is that obviously the court understands our position about the preservation. But apart from that, what I'm saying is that even without the admission... You look at the videotape and with due respect, Your Honor, I believe it. What you see is officers trying to subdue someone who's resisting arrest has a weapon. I believe the case law is clear that when an officer is confronted with a suspect who has a weapon and refusing to put it down, then deadly forces authorize. And what we cannot do, and I think what the cases are very clear, that the court should not do, is sit back and second guess that they could have done this, could have done that. The question is, from the reason most... From the perspective of the officer on the scene at the time the force was used, you have someone who the officer is saying he's got a knife. Four officers say we have a knife. He's not putting it down. As far as the gunshots are concerned, there were five shots to the various, just to the leftist of midline on the chest on the... So he was... The corroborator of the officers was saying that he was on the side facing them, waving the knife. I think under those situations that the officers are allowed to make judgments that may be mistaken, but that does not violate the Fourth Amendment. And certainly we have not found any case law that says that where you reasonably believe a suspect is armed and is not putting it down, then deadly forces not authorize, unless there's a point in time where the threat has clearly passed. And if deadly forces are still used after the threat has clearly passed, then that could be a violation of the Fourth Amendment. You don't have that here. Well, he didn't officer North some question about whether or not there was a threat at the time that his testimony... Officer North was the one officer that said he did not see a knife. He heard the other saying there was a knife, but what he was saying, he was relying on what the other officers were saying that he's got a knife and he wasn't putting it down. That was what Arthur North was saying. Wasn't officer North one of the first ones who cornered him? Officer North, if I'm not mistaken, came the... He was the second one on the scene and then Mr. Jones ran down the block and Mr. North then took chase. That's what I said. But at that point he did not... That's what I said. That's why I said he was the first to corner him. But at that point Officer North did not know that he had a knife. It was at the point that an officer said he's got a knife and get back. At that point the shots lasted about three seconds. They gave him nine seconds, which is a significant period of time in these kinds of events to drop the knife. The gunshots, they were many of them, but they were a rapid succession. It was not a situation in other cases where the suspect said I've dropped a knife or you drop the knife or they shoot when the... The fellow is driving away or somebody else. They have me with this. I know this is a difficult case. The scene where... You look at it, you see it. It's talking about where he's on the ground. I'm just... It's a dispute that you tell me, but it's on the ground. Five officers, five armed officers, literally on him, not standing around him, but literally on him. Right? Now, they say

.. Officer North was the one officer that said he did not see a knife. He heard the other saying there was a knife, but what he was saying, he was relying on what the other officers were saying that he's got a knife and he wasn't putting it down. That was what Arthur North was saying. Wasn't officer North one of the first ones who cornered him? Officer North, if I'm not mistaken, came the... He was the second one on the scene and then Mr. Jones ran down the block and Mr. North then took chase. That's what I said. But at that point he did not... That's what I said. That's why I said he was the first to corner him. But at that point Officer North did not know that he had a knife. It was at the point that an officer said he's got a knife and get back. At that point the shots lasted about three seconds. They gave him nine seconds, which is a significant period of time in these kinds of events to drop the knife. The gunshots, they were many of them, but they were a rapid succession. It was not a situation in other cases where the suspect said I've dropped a knife or you drop the knife or they shoot when the... The fellow is driving away or somebody else. They have me with this. I know this is a difficult case. The scene where... You look at it, you see it. It's talking about where he's on the ground. I'm just... It's a dispute that you tell me, but it's on the ground. Five officers, five armed officers, literally on him, not standing around him, but literally on him. Right? Now, they say... At that point he has a knife in his hand. They didn't say once they released him, he got a knife in his hand. They said, but if you're on the ground, you're holding them down. Five people. And he has a knife in his hand. Why would you back away and say, drop the knife wouldn't be more... Like it gets stabbed, especially out of their hand. You're already having them down. Why would you hold him down? You let him go. So he could swing it, you're wagging it back and up. To get a gun. That's what it shows. Because they backed up. Because their weapons weren't drawn. They backed up. And then they shot between the back up of your hand and his hand. He could have stabbed it. Why would you just hold him? It just seemed like that's inconsistent with the fact of five people on top of you. And you have a knife. You got a knife. I'm going to top of you. It's your hand. I'm going to keep it pressed on the side. I'm not going to let that hand go back up and then shoot you. Or I'll tell you to put it down. No. I'm not worried about you put it down. You're not going to be able to move your hand because five of us are on top of you. I just can't understand that. It's a tough game. I know you are, but I'm the lead judge. You're okay. Go ahead. May I respond to that? Yeah

... At that point he has a knife in his hand. They didn't say once they released him, he got a knife in his hand. They said, but if you're on the ground, you're holding them down. Five people. And he has a knife in his hand. Why would you back away and say, drop the knife wouldn't be more... Like it gets stabbed, especially out of their hand. You're already having them down. Why would you hold him down? You let him go. So he could swing it, you're wagging it back and up. To get a gun. That's what it shows. Because they backed up. Because their weapons weren't drawn. They backed up. And then they shot between the back up of your hand and his hand. He could have stabbed it. Why would you just hold him? It just seemed like that's inconsistent with the fact of five people on top of you. And you have a knife. You got a knife. I'm going to top of you. It's your hand. I'm going to keep it pressed on the side. I'm not going to let that hand go back up and then shoot you. Or I'll tell you to put it down. No. I'm not worried about you put it down. You're not going to be able to move your hand because five of us are on top of you. I just can't understand that. It's a tough game. I know you are, but I'm the lead judge. You're okay. Go ahead. May I respond to that? Yeah. My response to that, Your Honor, is that he wasn't stationary. He was moving around. He was resisting arrest. If you are a close proximity to someone with a knife, you are in more danger of being hurt and stabbed, then if you put distance between yourself, it doesn't take very long for someone to life and cause great bodily harm. Now, the question is, I think, was he, did he have a knife, was he threatened to use it, was refusing to put it down? He was getting up. That's the undisputed testimony in this case. Once you're up, it's too late. Once you're up, you can lunge very easily. We see this happening every day in different parts of the world where there are stabbing on the street. Knives are very dangerous. And whether or not the officers had a reasonable belief that he had a knife and was not putting it down, we believe it's dispositive in this case. In fact, I believe that that's what the appellant is saying by claiming that these are the requests of a myth were dispositive issues. I think that this is at worst in the hazy border between excessive and reasonable force where the court should not be enshrining for the men jurisprudence into police policy under facts that are diversified. And we can't have an obligation not to enshrine, but to review it. I understand. I understand. And our point is, my point on this one, your honor, is that if it's in that hazy border between excessive and reasonable force, then the benefit goes to the officer on the scene has to make rapidly, a split second decision in rapidly evolving circumstances that are fraught with danger. And this gets to whether or not there was a Fourth Amendment violation. Of course, it's not a question whether it was clearly established, qualified immunity, which still remains to be involved in this case. But our position is at least at this juncture where the court has decided that there was no Fourth Amendment violation as a matter of law. That should be affirmed because it's undisputed that he, at least, re-contended. It's undisputed that he had a knife that he was not, it was refusing to put it down despite commands to do that. And that because of that, the precedent says that deadly force is authorized. That's our response to the course concern. Thank you, gentlemen. Thank you very much. Mr. Sibra, you reserves in time. Thank you, Justice Gregory. I'm going to start out by saying or addressing Justice Gregory's inquiry about the courts authority. This court in TFWS, it's 5.72 F-3186 for a circuit 2009. This was discussing non-dispositive rulings in this court held. It absolutely had the right to bring up, to review a matter brought up in the first instance on appeal. Under three exceptions, one of those exceptions being the prior decision was clearly erroneous and will work a manifest injustice. I thought so too, but it's very clear. And the court is also consistent with the Supreme Court in Thomas V. R

. My response to that, Your Honor, is that he wasn't stationary. He was moving around. He was resisting arrest. If you are a close proximity to someone with a knife, you are in more danger of being hurt and stabbed, then if you put distance between yourself, it doesn't take very long for someone to life and cause great bodily harm. Now, the question is, I think, was he, did he have a knife, was he threatened to use it, was refusing to put it down? He was getting up. That's the undisputed testimony in this case. Once you're up, it's too late. Once you're up, you can lunge very easily. We see this happening every day in different parts of the world where there are stabbing on the street. Knives are very dangerous. And whether or not the officers had a reasonable belief that he had a knife and was not putting it down, we believe it's dispositive in this case. In fact, I believe that that's what the appellant is saying by claiming that these are the requests of a myth were dispositive issues. I think that this is at worst in the hazy border between excessive and reasonable force where the court should not be enshrining for the men jurisprudence into police policy under facts that are diversified. And we can't have an obligation not to enshrine, but to review it. I understand. I understand. And our point is, my point on this one, your honor, is that if it's in that hazy border between excessive and reasonable force, then the benefit goes to the officer on the scene has to make rapidly, a split second decision in rapidly evolving circumstances that are fraught with danger. And this gets to whether or not there was a Fourth Amendment violation. Of course, it's not a question whether it was clearly established, qualified immunity, which still remains to be involved in this case. But our position is at least at this juncture where the court has decided that there was no Fourth Amendment violation as a matter of law. That should be affirmed because it's undisputed that he, at least, re-contended. It's undisputed that he had a knife that he was not, it was refusing to put it down despite commands to do that. And that because of that, the precedent says that deadly force is authorized. That's our response to the course concern. Thank you, gentlemen. Thank you very much. Mr. Sibra, you reserves in time. Thank you, Justice Gregory. I'm going to start out by saying or addressing Justice Gregory's inquiry about the courts authority. This court in TFWS, it's 5.72 F-3186 for a circuit 2009. This was discussing non-dispositive rulings in this court held. It absolutely had the right to bring up, to review a matter brought up in the first instance on appeal. Under three exceptions, one of those exceptions being the prior decision was clearly erroneous and will work a manifest injustice. I thought so too, but it's very clear. And the court is also consistent with the Supreme Court in Thomas V. R. for 74 U.S. 140, 1985. The loss of the right to any Article III review, through failure to object to a mandatory judges report and recommendations, merely constitute a non-jurisdictional procedural default. With respect to the joint appendix of 485, I am not, what counsel made that representation, I'm not saying he made it, but that situation is. This expert does not support the representation. That's the court to review 484 to 485 where it starts on the heading the ninth. And he's reviewing the different testimony and he is clearly leading us towards what Justice Gregory says to credibility the officers. In the event of the end of the whole section, he says, I can't resolve these discrepancies. One officer said it was tucked in the knife, one officer said it was kicked away. He reports that it was reported that two knives were recovered, but no knives are produced. Conceited one of the knives belonged to a staff. It was Officer Lehman, who was the first on the scene, who was most familiar with this gentleman. Most familiar with the circumstances upon which they came into contact with him. And he's the one that unloads all they pull it out of his magazine. For the ones who show up later, concerned about the fellow officers, that's a different question. Officer Lehman is the first one there, and this notion that I don't want to hop too much on Justice Gregory, and I'm watching this video myself. And I'm thinking to myself, at what point are they afraid that he's going to threaten their lives or serious bodily injury? Well, because Officer Ashley, the deceased, if he had a weapon, had a contraband, come to that effect. He had to have been the affirmative, if you don't. He said what, apparently he said what's a weapon, and apparently found some scissors on it. And there was a knife that was studied for blood, and that was negative, but there was a knife, if they were dealing with it. Yes, it was. That's not a pigment of somebody's imagination if they tested it, is there? Well... Well, it is referred to in the police report. But where did it come from? Exactly. When we talk about the epitome... When a peel, when a peel's a court record, with that... I was asking about the existence of a knife. It's not in the record of the existence. There's no evidence there. There is no evidence. It's unfortunate that we've learned, who was it? Thanks to dash cams and video, it's a very unfortunate that we've learned that all too often, it's the same, it's just like, you know, I smell marijuana so I can search the car respectfully

. for 74 U.S. 140, 1985. The loss of the right to any Article III review, through failure to object to a mandatory judges report and recommendations, merely constitute a non-jurisdictional procedural default. With respect to the joint appendix of 485, I am not, what counsel made that representation, I'm not saying he made it, but that situation is. This expert does not support the representation. That's the court to review 484 to 485 where it starts on the heading the ninth. And he's reviewing the different testimony and he is clearly leading us towards what Justice Gregory says to credibility the officers. In the event of the end of the whole section, he says, I can't resolve these discrepancies. One officer said it was tucked in the knife, one officer said it was kicked away. He reports that it was reported that two knives were recovered, but no knives are produced. Conceited one of the knives belonged to a staff. It was Officer Lehman, who was the first on the scene, who was most familiar with this gentleman. Most familiar with the circumstances upon which they came into contact with him. And he's the one that unloads all they pull it out of his magazine. For the ones who show up later, concerned about the fellow officers, that's a different question. Officer Lehman is the first one there, and this notion that I don't want to hop too much on Justice Gregory, and I'm watching this video myself. And I'm thinking to myself, at what point are they afraid that he's going to threaten their lives or serious bodily injury? Well, because Officer Ashley, the deceased, if he had a weapon, had a contraband, come to that effect. He had to have been the affirmative, if you don't. He said what, apparently he said what's a weapon, and apparently found some scissors on it. And there was a knife that was studied for blood, and that was negative, but there was a knife, if they were dealing with it. Yes, it was. That's not a pigment of somebody's imagination if they tested it, is there? Well... Well, it is referred to in the police report. But where did it come from? Exactly. When we talk about the epitome... When a peel, when a peel's a court record, with that... I was asking about the existence of a knife. It's not in the record of the existence. There's no evidence there. There is no evidence. It's unfortunate that we've learned, who was it? Thanks to dash cams and video, it's a very unfortunate that we've learned that all too often, it's the same, it's just like, you know, I smell marijuana so I can search the car respectfully. He had a gun, he said he had a knife, and these videos are coming up showing that these things are not true, it is disappointing. And I try to remind people, police officers are not inherently bad, lawyers aren't inherently bad, the government's not inherently bad. But you do have evidence of... You do have evidence of record. Or at least you have the police report indicating that the knife was admitted to evidence, and you have... You have references to the fact that the knife was examined for usable prints, and there it is. It wasn't absolutely correct, it wasn't produced before the district court, but at least it's my understanding that it was admitted into evidence. Well, my response to that is similar to the planning of contraband, I'm not suggesting... Okay, so we're not... I don't want to argue with you about... Your argument now is going more to where did the knife come from, not the existence of the knife. Yes, the mission is... Yes, just a stuck-in. The mission is you had... he had a knife, he tried to stab a police officer, he refused to drop it. And if that's contested, and a knife shows up, and the jury is not required to believe that, that they could clearly find in the estate's favor on this case. This is some re-judgment, all. Infraases of... The faith of the non-moving party, I thought. They're supposed to be. The Supreme Court case.

. He had a gun, he said he had a knife, and these videos are coming up showing that these things are not true, it is disappointing. And I try to remind people, police officers are not inherently bad, lawyers aren't inherently bad, the government's not inherently bad. But you do have evidence of... You do have evidence of record. Or at least you have the police report indicating that the knife was admitted to evidence, and you have... You have references to the fact that the knife was examined for usable prints, and there it is. It wasn't absolutely correct, it wasn't produced before the district court, but at least it's my understanding that it was admitted into evidence. Well, my response to that is similar to the planning of contraband, I'm not suggesting... Okay, so we're not... I don't want to argue with you about... Your argument now is going more to where did the knife come from, not the existence of the knife. Yes, the mission is... Yes, just a stuck-in. The mission is you had... he had a knife, he tried to stab a police officer, he refused to drop it. And if that's contested, and a knife shows up, and the jury is not required to believe that, that they could clearly find in the estate's favor on this case. This is some re-judgment, all. Infraases of... The faith of the non-moving party, I thought. They're supposed to be. The Supreme Court case... And then we talked about somebody who said they looked at a knife, the examined a knife, but it's not an evidence. And what a title of seven case, for example, is interesting, how those were... First of all, it says that people who said that I heard animals, and we say, no, no, that's no evidence, it's not admissible. I don't know who said that there was examination. What testimony is that after David said that... I think that it's a result of self-serving statements by the officers in the city. There's nothing in evidence to support, for example, even the recovery of two knives. We lose all strictions here in Title VII, we don't at all. Oh my goodness, that's not even this one evidence. That's not an after-David. And this Court absolutely has an obligation to assist in governance of police policy. It doesn't in employment law. It does with the ADA, the IMLA. Employment law cases, these types of cases. This is where it comes from the top down, and we're pretty close to the top right here, justices. And this is a serious issue. And it really is about the training. If the deficiencies in the training, which is what the brothers speak to me about when they first came to my office, then you don't have officers approaching a man for allegedly violating municipal code and the up dead when they've tased him three times, they're on top of him on the ground, and they feel so threatened they had to shoot him twenty-two times. It is just difficult. It is really difficult to wrap your head around how that happens, and why he was done. I mean, clearly he's subdued. I have difficulty accepting anybody can represent that he is not clearly subdued in this video. And to suggest that we have to step back and pull out our firearms and shoot him twenty-two times, because he was a threat to our lives. Thank goodness we have the video. I think it was sufficient for you to question the fact to survive summary judgment. I think it was clear that the question missions were disposited, and it was air for the courts to not consider the 36-B factors. And even more of those factors considered, I think it... I don't want to go back and have an issue with the 36-B factors. I have a good recordous clear that in the line of the record in the case, they should not have been deemed admitted there was no legislative telleys, and the case should have been allowed to go to trial. Thank you, Council. Thank you

. We'll cut down a great council and proceed to our next case